Abstract

What is an appropriate test for determining whether there is conflict between provincial
and national legislation in the areas listed in Schedule 4 of the Constitution of the
Republic of South Africa, 1996? Although the direct conflict test seems to resonate with
s 150 of the Constitution in that it minimises legislative conflict, it is crudely onedimensional
in its attitude to legislation and it conduces to unconsidered overregulation.
Pre-emption, which counters some of these problems in other legal systems, is
ill-suited to the South African constitutional design. There is another way. Legal
interpreters should see legislative silence as deliberate in appropriate circumstances
which includes being open to finding conflict when 'limits are shifted'. This approach
coheres with the Constitution's design for legislative conflict which has s 146 of the
Constitution at its centre. It also protects regulatory space and prevents random overregulation.
The courts have a dual role in relation to conflict. They need to continue to
support and be respectful of the provinces. On the other hand national unity and
indivisibility of the Republic need to be unequivocally protected. As part of the principle
of co-operative governance, courts have residual power to invalidate protectionist
provincial legislation in the absence of conflicting national legislation.